Curative Petition in the Supreme Court: The Last Remedy

Where the remedy comes from

In Rupa Ashok Hurra, a Constitution Bench considered whether a final judgment of the Supreme Court, after a review had been dismissed, could be challenged by a writ petition under Article 32. It held that it could not: a judgment of the Court is not open to a writ. But relying on its inherent power and on Article 142, the power to do complete justice, it allowed a limited further petition, which it called a curative petition, to prevent abuse of its process and to cure gross miscarriage of justice.

The procedure the Court laid down in 2002 is now reflected in Order XLVIII of the Supreme Court Rules, 2013. It applies to civil and criminal cases alike.

The grounds the Court recognised

The Court declined to list every possible ground, but it identified the core situations in which a curative petition may be entertained:

• Breach of natural justice: the petitioner was not a party to the case but is adversely affected by the judgment, or was a party but was not served and the case proceeded as though notice had been given.
• Apprehension of bias: a judge on the bench did not disclose a connection with the subject matter or with a party, which gives reasonable ground to apprehend bias, and the judgment adversely affects the petitioner.
• Abuse of the Court's process of a comparable gravity.

What does not qualify is just as important. That the judgment is wrong on the law, that the evidence was misread, or that a different bench might have reached a different view are not curative grounds. Those points belonged in the Special Leave Petition or appeal and the review, and the Court will not hear them a third time.

Conditions a curative petition must meet

1. 1.A review petition against the same judgment must have been filed and dismissed. The curative petition must state specifically that the grounds it raises were taken in the review petition and that the review was dismissed by circulation.
2. 2.A Senior Advocate must certify that the petition meets the requirements laid down by the Court. The certificate is not a formality: a Senior Advocate who signs it is vouching for the petition to the Court.
3. 3.The petition is filed through an Advocate-on-Record, with the judgment, the review petition and the order dismissing it.
4. 4.It should be filed promptly after the review is dismissed; delay counts against it.

How the Court screens it

A curative petition is first circulated to a bench of the three senior-most judges of the Court and the judges who passed the judgment complained of, if they are available. They consider it in chambers. Only if a majority conclude that the matter needs a hearing is it listed, as far as possible before the same bench that decided the case. If the petition is found to be without merit and vexatious, the Court may impose exemplary costs on the petitioner.

The hearing, if it comes, is on the curative ground itself, not a rehearing of the whole case.

What the case law shows about success

Two decisions illustrate the range. In 2023 a Constitution Bench dismissed the Union of India's curative petition seeking enhanced compensation for the Bhopal gas disaster from the successor companies of Union Carbide, holding that a curative petition could not be used to reopen a settlement decades later on grounds that could have been raised earlier. In 2024, in Delhi Metro Rail Corporation v. Delhi Airport Metro Express, a three-judge bench allowed a curative petition and set aside the Court's own 2021 judgment that had restored an arbitral award, finding that the earlier judgment had caused a miscarriage of justice by interfering with a well-reasoned High Court decision on a patently illegal award.

The lesson is that success is exceptional and depends on showing a fundamental flaw, not a debatable one. Most curative petitions are dismissed in chambers without a hearing.

Our approach

We approach a potential curative petition by testing it first against the Rupa Ashok Hurra conditions, honestly and in writing, before any Senior Advocate is approached for a certificate. Often the better course is a different one: a fresh proceeding where new facts have arisen, a negotiated settlement, or, where the challenge concerns a High Court decision left standing by a reasonless dismissal of leave, a review in that High Court. Our constitutional and appellate teams work on these questions together.

To make that assessment we need the complete record: the judgment, every order in the review, the proof of service relied on by the Court, and a candid account from the client of when they first learned of the case and of any connection between a judge and a party that they believe was not disclosed. A curative ground must be shown from documents, not inferred from the result, and a Senior Advocate will not certify a petition that rests on suspicion alone.